Last 15 May, the Department of Justice (DoJ) issued Department Circular No. 05 series of 2024 providing for Guidelines for Inhibition of Prosecutors.

The Circular recognizes that circumstances may arise which will compel prosecutors to inhibit themselves, either mandatorily or voluntarily, from handling a particular case to prevent a conflict of interest or miscarriage of justice.

The Guidelines clarifies that the rules shall not be interpreted to prevent the Secretary of Justice from transferring cases as he deems necessary in order to afford fair play or prevent a miscarriage of justice.

The Guidelines covers all proceedings, including preliminary investigation, inquest and summary proceedings, prosecuting cases during trial, and taking part in the resolution of petitions for review.

The Circular provides that a public prosecutor’s inhibition may either be mandatory (disqualification) or voluntary (recusal).

Mandatory inhibition

or disqualification

Public prosecutors are mandatorily prohibited from taking part in any proceeding where a conflict of interest has been identified or where their impartiality might reasonably be questioned.

The Circular provides a non-exhaustive list of instances where a public prosecutor must mandatorily inhibit, which are:

1) The public prosecutor knows that his or her spouse, descendant, ascendant or any relative within the fourth civil degree of consanguinity/affinity has interest in the subject matter of the controversy;

2) The public prosecutor is related by consanguinity or affinity to any litigant within the sixth civil degree or to counsel within the fourth civil degree;

3) The public prosecutor has a pecuniary interest, such as when he or she served as executor, administrator, guardian, trustee, or lawyer, in the case or matters in controversy, or served as counsel for any of the litigants or the witnesses;

4) The public prosecutor has personal knowledge of the disputed facts concerning the proceeding;

5) The public prosecutor issued the resolution or recommendation subject to review or appeal; and

6) The public prosecutor has a close personal relationship with any party litigant or counsel.

According to the Guidelines, within 10 days from receipt of the complaint or case docket, or from gaining knowledge of any ground for mandatory inhibition, the public prosecutor shall mandatorily inhibit himself/herself from conducting the preliminary investigation, or handling such case.

Upon inhibition, the public prosecutor concerned shall submit a Memorandum, under oath, addressed to the head of the prosecution office concerned disclosing the relevant facts and the reason for his/her inhibition. Together with the Memorandum, the complete records of the case should be transmitted to the head of the prosecution office concerned.

Within three days from receipt of the Memorandum, the head of the prosecution office shall note the reason stated in the Memorandum and thereafter re-raffle the case to another public prosecutor.

Thereafter, the parties shall be informed of the public prosecutor’s inhibition and of the appointment of a new public prosecutor.

The Circular’s section providing the grounds and procedure for voluntary inhibition will be discussed in the next article.

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